Hennis v. Warden, Chillicothe Corr. Inst.
| Decision Date | 05 July 2012 |
| Docket Number | Case No. C–3:10–cv–202. |
| Parties | William HENNIS, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
William Hennis, Chillicothe, OH, pro se.
Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, Diane Duemmel Mallory, Columbus, OH, for Respondent.
ENTRY AND ORDER OVERRULING HENNIS'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. # 25); ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. # 24) IN ITS ENTIRETY; DISMISSING HENNIS'S PETITION FOR A WRIT OF HABEAS CORPUS WITH PREJUDICE; DENYING HENNIS LEAVE TO APPEAL IN FORMA PAUPERIS AND A CERTIFICATE OF APPEALABILITY; AND TERMINATING THIS CASE
This matter comes before the Court pursuant to pro se Petitioner William Hennis's (“Hennis's”) Objections (doc. # 25) to Magistrate Judge Michael J. Newman's Report and Recommendations (doc. # 24). The time has run and the Warden has not responded to Hennis's Objections. Hennis's Objections are, therefore, ripe for decision.
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Hennis's Objections to the Magistrate Judge's Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Magistrate Judge's Report and Recommendations is adopted in its entirety.
Hennis's Petition for a Writ of Habeas Corpus is DENIED WITH PREJUDICE. Further, because reasonable jurists would not disagree with this conclusion, Hennis is denied leave to appeal in forma pauperis and any requested certificate of appealability. Finally, the captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
Pursuant to 28 U.S.C. § 2254, pro se Petitioner (“Petitioner” or “Hennis”) brings this petition for a writ of habeas corpus. Petitioner was convicted of gross sexual imposition, rape, and sexual battery in March 2003 and is currently serving his thirty-year sentence in Respondent's custody.
Previously, upon Respondent's motion (doc. 11), the Court dismissed Grounds Three, Four and Six because Petitioner had not exhausted his state court remedies with respect to those claims. Docs. 15, 16. The Court then ordered the case to proceed on the remaining claims—Grounds One, Two, Five, Seven and Eight, id., which are now before the Court:
GROUND ONE: The State Courts in Ohio failed to honor the Constitutional protection of Petitioner's due process and equal protection rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.
Supporting Facts: In 2004, the United States Supreme Court issued a ruling on the procedural right at sentencing. Petitioner has no previous criminal history and raised this issue to the Court of Appeals of Ohio as a sentencing error that he was entitled to minimum concurrent sentences because he is a first-time offender.
GROUND TWO: Petitioner is entitled to the protection of the Fourth, Sixth and Fourteenth Amendment rights of the U.S. Constitution.
Supporting Facts: Petitioner contends that the protection of due process and equal protection fall into play when the State of Ohio violated those rights, when they used incomplete evidence or evidence submitted outside the proper authenticated chain of custody. The audio tape played at trial, purported to depict a conversation between the Complainant and the Petitioner. The actual conversation was about 50 minutes. However, the tape played was 19 minutes long and omitted the portion of the conversation in which the Petitioner denied the Complainant's claims, which means the jury never heard the entire conversation. Detective Meyer states that she thought the tape was 30 minutes long when she received them.
GROUND FIVE: The Court of Appeals allowed an error from the trial court to stand for the imposition of a sentence that was contrary to law.
Supporting Facts: Petitioner states, even though he was re-sentenced, he is still wrongfully sentenced to the same sentence. Petitioner was, at the time of his sentence, entitled to the factors as set forth in accordance to the law before Foster. This required the Court to impose the minimum sentence upon this Petitioner, who had not previously served any prison sentence, unless the Court found, on the record, that the shortest prison term would demean the seriousness of the conduct or not adequately protect society. Petitioner contends that the Second District Court of Appeals reversed the trial court's sentence on this basis. However, the trial court, upon their view, sentenced Petitioner to the same sentence as was reversed.
GROUND SEVEN: The Second District Court of Appeals of Ohio and the Clark County prosecuting attorney deprived Petitioner of due process and equal protection by submitting and accepting falsified documents to sustain an erroneous conviction.
Supporting Facts: Petitioner claims his case involves additional Constitutional violations when the trial court and appellate court entered into collusion with the State's representative, who falsified documents.
It is submitted by Petitioner in the actual attached documents that were submitted to the State Courts that he has been denied every opportunity to have his case adjudicated fairly in any State Court after the reversal.
The State's highest Court declined to hear his proposition of law, but did so without stating there was not a substantial constitutional question before them. The State of Ohio also waived filing of any Memorandum in Opposition.
GROUND EIGHT: Petitioner was denied appellate counsel's complete assistance when counsel failed to challenge the amending of the State's presented documents on appeal brief.
Supporting Facts: Petitioner contends he was charged with 10 separate offenses at the time the alleged victim made her allegations she was 17 years old. The original Complaint alleges that the assaults took place in 1991, when the alleged victim was only six (6) years old. This fact was proven to be false with the State on evidence provided to defense in discovery, which shows that the Petitioner's wife did not have custody and/or guardianship until October 26, 1993.
Doc. 4 at PageID 11–13, 24–26 (capitalization altered).
In August 2002, Petitioner was indicted by the Clark County, Ohio grand jury on ten sexual offenses committed against his adoptive daughter: five counts of gross sexual imposition; one count of rape; and four counts of sexual battery. Doc. 11–1. The State amended the dates in the indictment, see docs. 11–4, 11–7, and also dismissed the rape count before trial. See docs. 11–6, 11–8. A jury found Petitioner guilty of the gross sexual imposition and sexual battery counts. Doc. 11–9. Petitioner was sentenced to two-year consecutive terms for each gross sexual imposition count, plus five years for each sexual battery count, for a total of thirty years. Doc. 11–10. The trial court also classified Petitioner as a sexually oriented offender. Id.
With the assistance of counsel, Petitioner timely appealed his conviction and sentence to the Ohio Second District Court of Appeals, setting forth the following assignments of error:
I. Appellant was denied his constitutionally guaranteed right to effective assistance of counsel;
II. The trial court erred in failing to suppress evidence gained from an illegal search and seizure;
III. The rape shield law was unconstitutionally applied to the appellant's case;
IV. Appellant's con[v]ictions were against the sufficiency and/or manifest weight of the evidence;
V. Appellant was denied effective assistance of counsel;
VI. The trial court erred in imposing a sentence that was excessive and contrary to law;
VII. Appellant was denied due process and a fair trial due to juror misconduct and the trial court's error in failing to conduct an individual voir dire of jurors; and
VIII. The cumulative effect of the errors occurring at trial deprived Appellant of a fair trial.
Docs. 11–12, 11–13. On January 7, 2005, the Ohio Second District Court of Appeals overruled seven of his eight assignments of error. State v. Hennis, No. 2003 CA 21, 2005 WL 32796 (Ohio Ct.App.2d Dist. Jan. 7, 2005) (doc. 11–16). However, the Court of Appeals remanded the case to the trial court for re-sentencing due to its failure to specify reasons for imposing consecutive sentences as required by the then-applicable sentencing statute. Id.
Petitioner did not appeal the Ohio Second District Court of Appeals' decision—overruling his seven assignments of error—to the Ohio Supreme Court.
While his direct appeal was pending, Petitioner filed a pro se petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 on November 4, 2003 asserting: (1) a violation of due process; (2) ineffective assistance of trial counsel; and (3) a violation of the Eighth Amendment. Doc. 11–17. With the assistance of counsel, Petitioner filed a supplemental petition for post-conviction relief, in which he elaborated on his ineffective assistance of trial counsel claim, in October 2004. Doc. 11–18.
Petitioner also filed a pro se motion under Ohio R. Civ. P. 60(b) in January 2005, claiming that evidence obtained as a result of illegal wiretapping was admitted at trial. See doc. 11–19.
On May 27, 2005, the Clark County Common Pleas Court denied both of Petitioner's post-conviction motions, finding the claims were barred by res judicata. Doc. 11–22.
On May 31, 2005, Petitioner was re-sentenced in the Clark County Common Pleas Court to the same sentence that was imposed the first time: thirty years. Doc. 11–23.
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